Wednesday, September 4, 2013

The Palestinian Wrong Of Return: Demystifying the Legal Basis of the “Right of Return” and Analysing “Refugee” Numbers

The Palestinian Wrong Of Return: Demystifying the Legal Basis of the “Right of Return” and Analysing “Refugee” NumbersCLIFF PINTO

It is improper to dangle hopes that will not be realised before the eyes of people suffering in misery and oppression. Rather, constructive efforts should be pursued to mitigate their suffering and deal with their problems in the real world.

Since the failed war of annihilation waged against Israel by various Arab states in 1948, and the Palestinian exodus caused by the Arab armies as a result, the Palestinian “Right of Return” has been made sacrosanct to the resolution of the conflict. Many-a-generous peace offers by the Israelis have been bluntly rejected for not including an actual, physical right of return. The Palestinian Liberation Organisation (the PLO) has painstakingly brainwashed its people for generations via the education system and the Palestinian media, kindling the false hope of one day “returning” to what they consider their homeland, to the point where the mere mention of anything negating, dismissing or denying that right to return is considered bigotry in common Palestinian parlance – even in the solidarity movements consisting of non-Palestinians. In every pro-Palestinian effort, the right of return is always number one on the agenda. You will never bear witness to a pro-Palestinian group that is divorced from this pipe-dream.

International law is often touted as a defence of this supposed “right” and morality is said to be on its side. Thanks to United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), an organisation funded by the US and the EU nations, this charade has been kept alive. UNRWA has gone one step further in cementing the Palestinians’ collective high-hopes by deeming Palestinian refugee status hereditary, in spite of knowing full-well that there is no law that allows this and no other group of refugees, anywhere in this world has the same privilege.

ALL arguments in this piece are purely from the legal perspective, to firmly establish that there is no legal precedence whatsoever that guarantees a Palestinian right of return, contrary to what the PLO and Palestinian Solidarity Movements would have us believe.

In all fairness, I have to state at the outset, there is no denying the fact that there were some forceful expulsions of Arabs in the 1948 war, and that those people do have genuine claims. The crisis, however, is not as black and white as the anti-Israel crowd often preach. They were a variety of reasons for the Palestinian exodus, the vast majority of which were not coercion, but since that topic is out of scope for this discussion, I will not expand on it here. I would recommend reading the book, “Palestine Betrayed,” by renowned scholar, Efraim Karsh, for a thorough understanding of the Palestinian exodus.

DEMYSTIFYING THE FALSIFICATION OF INTERNATIONAL LAW

• UN General Assembly Resolution 194Al-Awda, The Palestine Right to Return Coalition, on its propaganda website, cites UN General Assembly Resolution 194, passed on December 11th, 1948 (near the end of the 1948 Arab–Israeli War), as “solid legal basis” of the Palestinian right-of-return. Specifically, Article 11 of this resolution supposedly guarantees an “unconditional” right of return to the Palestinians.

It is extremely biased of them to quote this resolution precisely because it was never accepted by the Arab nations. Also, General Assembly resolutions are non-binding, which is why the Arabs never accepted it in the first place state.

An in-depth study of Article 11 — unlike the surface-level, highly selective skimming by propagandists with a destructive anti-Israel agenda – will make it clear that it doesn’t necessitate a physical “return,” but in fact very clearly speaks of “settlement” or “compensation.” There is no “unconditional right of return” guaranteed anywhere in UNGAR 194, leave alone Article 11, much to the disappointment of pro-Palestinian propagandists.

Often overlooked, is the fact that nowhere does this resolution specifically mention “Arab” refugees. It uses the term “refugees,” which obviously includes Jews ethnically cleansed from the Eastern part of Jerusalem during the Jordanian occupation starting 1948 and also the Jews expelled from the rest of the Arab world. Israel isn’t even mentioned anywhere in this resolution.

The language reads : “Compensation should be paid for the property … and for loss of or damage to property” by the “governments or authorities responsible.” The usage of plural wordings, “governments or authorities,” indicates that the fault and burden of compensation falls on multiple entities. The refugee crisis was borne out of the invasion of seven Arab armies on Israel, so it was those seven Arab nations, and not Israel, that are responsible for the refugee crisis. According to this resolution, those same Arab nations ought to be held accountable for the refugees they created.

So, in a nutshell, as per Al-Awda and other “Right of Return” advocates, Arab entities were allowed to reject the Resolution in its entirety, simply because of its non-binding nature, allowing themselves a free hand in continuing their genocidal campaigns against Israel. But yet, as per the popular pro-Palestinian demand, Israel is absolutely required to abide byonly that clause of the same non-binding resolution that suits the anti-Israel agenda. The bias of that demand truly defies logic.

• UN Security Council Resolution 242Another favourite statute of International Law among the pro-Palestinian advocates is UN SC Resolution 242.

This resolution was passed in the aftermath of the Six Day War of 1967. Over and above clearly defining Israel’s borders and further ratifying its existence, this binding resolution stipulates that a comprehensive peace-plan must include “a just settlement of the refugee problem.” It saysnothing more on the refugee situation. The “refugees” outlined by this resolution include not just the Palestinians, but also the roughly one million strong Jewish refugees that were ethnically cleansed from the Arab world. Justice Arthur Goldberg, the American delegate who was instrumental in drafting the unanimously adopted resolution, has pointed out that the adjective “Palestinian” or “Arab” was deliberately omitted from the resolution to indicate that the claims of the Jewish refugees from Arab lands need also to be addressed.

Nowhere does UN SCR 242 call for a physical right of return for the Palestinian so-called “refugees.”

All the legal experts (again, aside from PLO propagandists or people with an agenda), agree with the above interpretation of the refugee clause of UN SCR 242. Even the darling of the anti-Israel camp, Norman Finkelstein, in separate interviews with Omar Baddar and Frank Barat, FIRMLY states that international law does not support a physical right of return for Palestinians. He does however often say that Palestinians have a right to demand an apology, recognition, and a “just settlement” from Israel, but, within the constraints of what is considered reasonable and acceptable to Israel.

How, then, do advocates of the Palestinian “Right Of Return” use this resolution to justify their end?

• Convention relating to the Status of Refugees (CRSR)Signed three years after the war of 1948, and entered into force on April 1954, the CRSR is another card very often played by the anti-Israel camp. Unfortunately for them, while this treaty is certainly the most binding and authoritative one regarding this subject, it is also a double edged sword.

Article 34 of the CRSR is titled “Naturalization”. The precise language is as follows:

“The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”

Now, seeing as how the vast majority of the original 1948-ers are today either deceased or are extremely old, and the vast majority of today’s so-called “refugees” have been born and raised in Arab countries for either one or two generations (if not more), why are they still not full-fledged citizens in their home countries with equal rights and liberties as others?And why is their refugee status not revoked when the CRSR (that Israel haters say Israel is in violation of) stipulates that they are not refugees?

Thanks to UNRWA, over six million born and bred Lebanese, Syrians, Jordanians, Iraqis and Arabs from other parts of the world are considered “refugees” when less than 30,000 of those who actually left in 1948 are alive today.

How is it that Israel is required to abide by the CRSR but all other Arab nations get a free pass on its’ stipulations?

[Article 5 (d)(ii)] states: “State parties undertake to prohibit and to eliminate racial discrimination on all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of … the right to leave any country, including one’s own, and to return toone’s country.”

[Article 12(4)], states: “No one shall be arbitrarily deprived of the right to enter his own country.”

While analysing these treatises, one cannot avoid asking what is meant by “his country,” “one’s country” and “his own country” when discussing the Palestinian refugee issue.

The answer is simple. Again, most Palestinian “refugees” of today have been born and raised in every other country but Israel. As per the CRSR (which Israel-haters keep forcing down Israel’s throat), these “refugees” ought to be citizens in their country of birth or their upbringing. Being allowed to return to “his country,” “one’s country” and “his own country” would mean being allowed to enter Lebanon, Syria, Jordan, Iraq, Kuwait or whichever country they’ve been born and raised in. How did Israel become “their country”? Why should they be allowed to enter Israel? And again, why are they still “refugees”?

About the actual émigrés of the 1948 conflict (and not their descendants), what “country” did they belong to? Israel? The British Mandate of Palestine? On what basis should they be allowed to return to Israel? And where do either of the above three treatises disallow financial compensation or resettlement (IF their claims are genuine)?

But all of that aside, nothing deters from the fact that they’ve lived continuously for over half a century in every nation surrounding Israel, and ought to be naturalized citizens of those lands with their refugee status fully waived as per the CRSR.

Why that has not happened, is a travesty in itself.

4. Oslo I and Oslo II Signed in 1993 and 1995 respectively, Oslo I and Oslo II specifically state that the resolution to the Palestinian refugee problem was entirely left to “permanent status negotiations” by both parties. No guarantees whatsoever are made about any physical right of return.

5. Road Map for PeaceThis accord, proposed by the Quartet on the Middle East (the United States, the European Union, Russia and the United Nations) in April 2003, as a guide towards the implementation of a two state solution, specifically enshrines Israel’s non-negotiable condition : “Declaration of Israel’s right to exist as a Jewish state, as well as the waiver of any right of return of refugees to Israel.”

6. The Geneva InitiativeThe Geneva Initiative of October 2003 is entirely drafted upon UN SCR 242, UN GAR 194, and the Road Map For Peace therefore completely rejects any notion of a physical right of return for Palestinians.

For lack of space, I am unable to mention every last accord or peace initiative concerning the Israel-Palestine conflict, but with regards the refugee problem, none of them guarantee or even entertain the thought of a physical right of return.

ANALYSING “REFUGEE” NUMBERS

The Peel Commission Report of 1937 stated:

The shortage of land is due less to purchase by Jews than to the increase in the Arab population. The Arab claims that the Jews have obtained too large a proportion of good land cannot be maintained. Much of the land now carrying orange groves was sand dunes or swamps and uncultivated when it was bought.”

(….)

The Arab population shows a remarkable increase since 1920, and it has had some share in the increased prosperity of Palestine. Many Arab landowners have benefited from the sale of land and the profitable investment of the purchase money. The fellaheen are better off on the whole than they were in 1920. This Arab progress has been partly due to the import of Jewish capital into Palestine and other factors associated with the growth of the National Home. In particular, the Arabs have benefited from social services which could not have been provided on the existing scale without the revenue obtained from the Jews.

Robert F. Kennedy, (brother of US President John F. Kennedy), who in 1948 was a reporter for the Boston Globe, was sent in the spring of that year to the British Mandate to cover the political scenario at the time. Among his insightful dispatches, the most prominent one included a now world-famous quote:

The Jews point with pride to the fact that over 500,000 Arabs in the 12 years between 1932 and 1944, came into Palestine to take advantage of living conditions existing in no other Arab state. This is the only country in the near and Middle East where an Arab middle class is in existence.

In addition to the above, various historical accounts, aside from the PLO propaganda machine, firmly establish that the overwhelming majority of the Arab residents of the Western Mandate were recent immigrants. Did every last one of them become property owners by the time the conflict of 1948 began?

Of the many realities of the political backdrop of the time, let’s consider a few:

(1) Prior to 1938, legal Arab immigrants into the Western Mandate from the Eastern Mandate of Palestine were not registered as “Immigrants” by the British. By no stretch of the imagination could all those recent arrivals become land-owners in such a short time.

(2) British police records of that time clearly establish that during the 1930s, the vast majority of illegal immigrants apprehended by the British (roughly 95%) were not Jews but Arabs. Illegal Arab immigration was so severe that in 1938 the British built a fence on the Lebanese border. Did all of these illegal immigrants become landowners so quickly?

(3) Various analyses of population statistics of the mid-1940s suggest that there were about 200,000 illegal Arab immigrants into the Western Mandate from various parts of the Arab world, of which, few, if any, would have been land-owners. Add to that about a similar number of legal migrants, of whom only a few were land-owners. The migrants settled there, temporarily for the most part, because of the economic boom brought on by the burgeoning Jewish communities. What is their LEGAL claim to the land?

For lack of space, I will not be able to list more data concerning the demographics of the time, but suffice to say that virtually all sources overwhelmingly reinforce my point that only a minority of the Arab populace of the Western Mandate owned property by 1948.

There is no denying that many land-owners and many Arabs families that lived there for generations did also leave during the war, but considering the above mentioned realities (among many others), how exactly is it that in the Palestinian discourse every last person who left their home during the 1948 Arab-Israeli War (whether voluntarily of forcefully) was a full-fledged land owner or permanent resident? How is it that a family that lived illegally in the British Mandate can demand a right of return, not only for them, but also for their children, grand-children and great grand-children? This charade diminishes the extent of the actual losses of many land-owning Arabs and mitigates the possibility of the financial redressal of many of their very genuine concerns.

Some clear examples of recent immigrants to the land:The Algerians who arrived in the Mandate to escape the French, the Bosnian Muslims who established a settlement in what is now Caesarea, the Afghan Muslims who established a settlement in Jaffa, the Druze who arrived in large numbers from what is now Lebanon, the Circassians and Turkmen who arrived in the Mandate to escape the troubles in the USSR, the Kurds and Persians, the Moroccans who settled in a part of Jerusalem called the Mughrabi Quarter (named after them). Was every single one of them a land owner?

Furthermore, even Palestinian sources don’t have an exact figure on the number of original refugees from 1948 war. The figure ranges from 300,000 to over a million, depending on which Arab source you to refer to. The 750,000 figure seems to have been upped from about 400,000 between the 1948s to the 1970s, to the present figure, as a result of fraud and various kinds of manipulations by the “refugees,” in which UNRWA itself was fully complicit. Unfortunately for PLO propagandists, the higher the number of Arab refugees in 1948 is exaggerated, the greater is the number of migrants (legal and illegal) and non-land owners, who have no claims to the land – simply by virtue of the fact that a huge percentage of the Arabs there were temporary (legal and illegal) residents. It’s simple math, really.

As UNRWA Director Howard Kennedy succinctly put it in 1950:

“… fictitious names on the ration lists pertain to refugees in this area. All earlier attempts at a close census of those entitled to relief have been frustrated, but a comprehensive survey, now under way, is achieving worthwhile results in casting up names of dead people for which rations are still drawn, fraudulent claims regarding numbers of dependents (it is alleged that it is a common practice for refugees to hire children from other families at census time), and in eliminating duplications where families have two or more ration cards. The census, though stubbornly resisted, will eliminate many thousands from the lists of refugees now in receipt of rations.”

The “comprehensive survey” never reached fruition, unfortunately, and the fraud continues to this day.

Bottomline : Even by the most liberal estimates, more than half the Arab population of the mandate in 1948 did not own land. Add to that, the huge percentage of illegal migrants from the rest of the Arab world.

So on what basis is the assumption made that every last voluntary and involuntary refugee of 1948 was a property owner or at least a permanent resident that deserves compensation?DECONSTRUCTING LAST DITCH ARGUMENTS BY RIGHT OF RETURN ADVOCATES• “Why are diaspora Jews accorded an automatic return to Israel, but Arabs aren’t?”

The answer to the question is best answered with a question: Why don’t the Netherlands, Spain, Germany or France allow their minority North African, Turkish or Pakistani/Bangladeshi populaces an automatic right of return, simply because the ethnic Dutch, Spanish, German and French living in the diaspora are accorded one?

The Netherlands, Spain, Germany and France are the nation states of the Dutch, the Spanish, and the French people. These nations have an ethnic majority and are nation states built on that ethnic identity, with a right of return for ONLY the majority, where minorities are given full civil-rights. This is precisely the case with Israel. It is the nation-state of the Jewish ethnicity. It’s a completely secular state, with no official religion, where its Arab minority is given full rights as the majority, while extending the right-of-return only to the ethnic majority. So why is Israel singled out among SO MANY European nation states for not instituting a right of return for its minority?Furthermore, the right-of-return for one group in a nation is completely a domestic issue, and can be subject to scrutiny only within the state. International Law has no jurisdiction in the remotest sense here.

In his February 2012 interview with Frank Barat, even Norman Finkelstein, when questioned about an automatic right-of-return for Israeli-Arabs’ families in the diaspora, emphatically yelled : “There’s NOTHING, anywhere, in the international consensus for resolving the conflict that says anything about the minorities inside Israel….”. He goes on further to say, “It’s NOT there,” when further discussing the non-existence of any legality that could ensure the extension of the right of return to the Arab minority.

In November, 1988, in Yasser Arafat’s belated declaration and acceptance of the by-then obsolete partition plan proposed by UN General Assembly Resolution 181 of 1948, while there was a mention of the refugee problem, there was no mention whatsoever about using the Israeli-Arabs to achieve that end. Even Arafat realized that the use of the Israeli-Arabs as a legal tool to perpetuate the Palestinian right of return fallacy is a non-starter, so why aren’t pro-Palestinian groups heeding their hero’s advice?

• “From a strictly legal perspective, why doesn’t Israel’s “Law of Return” apply equally to all its citizens? When the law has in its title, the word “return,” isn’t it discriminatory or racist to exclude non-Jewish groups in the diaspora that also once lived there?”Since I’ve already explained how nation states can (and do) institute rights-of-return for their base ethnicities ONLY, fully within the framework of the law and morality, I’ll directly address the childish play at semantics and the farcical attempt at misdirection employed here.

Now, the argument here is that a “Law of Return,” which has the word “return” in its title, is racist if it doesn’t apply to ALL people (or their descendants) that inhabited the land in the past. They say the Palestinian diaspora should be allowed to “return” to Israel as even they lived there at one point.

To this, I respond by asking: If, tomorrow, the Knesset decides to rename the law as “The Law of Immigration,” keeping everything else the same, would the Palestinians have a case in demanding a “return”? Would they then relinquish their self-adjudicated automatic “right to return” simply because they don’t meet the “Law of Immigration’s” main requirement of belonging to the Jewish ethnicity? This silly attempt at toying with semantics can easily be shredded to bits with that piece of logic.